Kavanaugh — Outrage, Lies and Partisanship

The Hearing

On September 27 Christine Blasey Ford testified at a U.S. Senate hearing on Judge Brett Kavanaugh’s Supreme Court nomination. She alleged that a drunken Brett Kavanaugh had attempted to rape her some thirty-six years ago when both were teenagers. Judge Kavanaugh denied the allegation immediately, unequivocally, and categorically. By mid afternoon, the hearing’s only conclusion was the outrage, lies and partisanship that surrounded this nomination.

The Background

On July 9th, President Trump announced his nomination of Judge Brett Kavanaugh to the Supreme Court to replace the retiring Justice Anthony Kennedy. The nomination immediately sparked partisan opposition and support. Opposition came principally from Democrats and pro-abortion groups concerned about the Roe v. Wade decision, making abortion legal. They feared Judge Kavanaugh would join with the four Conservative Justices and reverse or seriously curtail it. His previous public statements and actions in the D.C. Circuit Court where he served provided the basis for that conclusion.

Other groups joined in to oppose him based on his overall judicial record. They believed he would be pro business at the expense of workers and employees. Others felt he would be restrictive on immigration, consistent with Trump’s policies on the issue. Some also believed he would protect the President from any judicial actions that evolved from the Russian investigation.

Republicans and anti-abortion groups largely supported the Kavanaugh nomination. Conservatives, gun rights advocates and pro business groups also provided support. One might reasonably conclude that if you opposed the views of those opposing Kavanaugh, you would likely be his supporter.

The Allegation

When Judge Kavanaugh’s name appeared on a list of possible Supreme Court nominees, Ms. Ford wrote to her California Congresswoman. She outlined her allegation, hoping this information would preclude the President from selecting him as the nominee. She also requested that the Congresswoman hold her letter in confidence and not disclose her identity. The letter made its way to California Senator Diane Feinstein, also the ranking member on the Senate Judiciary Committee. Observing her request, Senator Feinstein disclosed the letter only after someone leaked Ms. Ford’s allegation to the news media.

The Initial Reaction

The allegation became public. Democrats expressed outrage and demanded that the Senate committee hear Ms. Ford’s allegation. Concurrently, Republicans expressed outrage that the Democrats did not reveal this accusation earlier so that the FBI might have investigated it in privacy. In any event the Senate scheduled a hearing to listen to both Ms. Ford and Judge Kavanaugh.

At the conclusion of Ms. Ford’s testimony, the Committee recessed. Opponents of Judge Kavanaugh’s nomination and even many of his supporters acknowledged that Ms. Ford was a credible witness as was her testimony. When the Committee resumed deliberations, the atmosphere changed radically. Angry and emotional, Judge Kavanaugh responded. He denied the allegation and then attacked his opponents. He accused the Democrats of purposely holding and then revealing Ms. Ford’s allegation to upset his nomination. He cited their actions as a “political hit fueled with apparent pent-up anger about president Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.” He then recounted his long public career and several FBI background checks that did not reveal such accusations.

Questioning the Candidate

In their subsequent questioning, Democrats focused on the extent of Judge Kavanaugh’s beer drinking, which was at the heart of Ms Blasey’s accusation. They continually pressed him as to whether he ever became so drunk, he did not remember his actions. He alternately denied the accusation, did not respond or turned the question back onto the questioning Senator. In the midst of the proceedings, Senator Lindsay Graham claimed his right to question the Judge himself. He appropriated that responsibility from the Republican’s designated female interrogator, an Arizona County sex crimes prosecutor, Rachel Mitchell.

In an angry outburst, he blamed the Democrats for their “despicable” conduct towards Judge Kavanaugh, wanting to “destroy this guy’s life.” He added, “This is the most unethical sham since I’ve been in politics . . .” He forcefully declared that he would be voting for Judge Kavanaugh’s nomination and urged his fellow Senators to do likewise. Republican Senators Orrin Hatch, John Cornyn and Ted Cruz followed with direct questioning of Judge Kavanaugh. They criticized the Democrats’ role in the process and apologized for the treatment Democrats forced the Judge to endure.

The Democrats repeatedly asked for a delay in the proceedings to allow the FBI the opportunity to reopen its investigation. They asked Judge Kavanaugh if he would agree to such an investigation to clear his name. He declined to respond. The Republicans pressed to move forward. They emphasized that the available information warranted no additional investigation.

The Committee Vote

The Committee resumed its meeting the next day to decide on advancing the nomination to the full Senate. It scheduled a vote at 1:30 PM. But that time passed, and nothing happened. Later that afternoon, retiring Arizona Senator Jeff Flake, previously a yes vote on Judge Kavanaugh’s nomination, changed his position. After meeting privately with a few Democratic Senators, he proposed the nomination be advanced, but the full Senate vote delayed a week. That would allow the FBI to review sexual assault allegations against Judge Kavanaugh. Senators Susan Collins and Lisa Murkowski, moderate Republicans, undecided on the nomination, voiced support for Senator Flake and the delay.

An Opinion on Republican Outrage

I can understand the Republican anger at the manner in which the Democrats treated Ms. Ford’s information. An earlier investigation could have maintained her privacy. That would have been preferable to the acrimony created by this “last minute” disclosure. On the other hand, Republicans have withheld a substantial number of documents relating to Judge Kavanaugh’s career. They have also vowed and continued to push his nomination through without providing such information. Though I can understand the Democrats’ dismay and desire to derail the nomination, this approach was not the way.

But it is difficult to accept the outrage expressed by Lindsay Graham and other Republicans describing the “despicable” Democratic conduct. To find “the most unethical sham since I’ve been in politics,” I suggest Senator Graham look back to 2016. In February of that year, then President Obama nominated Judge Merrick Garland to the Supreme Court. He was to fill the open seat left by the death of Associate Justice Antonin Scalia. In 2010 Senator Hatch considered Judge Garland a “consensus nominee;” there was “no question” he would be confirmed. But that was not to be in 2016.

The Senate Majority Leader, Republican Mitch McConnell, in an unprecedented action, refused to consider any nomination by President Obama. He said that the next President would choose the next Supreme Court Justice. In a speech in Kentucky he announced, “One of my proudest moments was when I looked Barack Obama in the eye and I said, ‘Mr. President, you will not fill the Supreme Court vacancy.’ ” That promise was upheld by all Republican Senators on the Judiciary Committee—a stark example of unethical and despicable conduct. Under the circumstances, I find it difficult to accept the latest hypocritical Republican outrage.

An Opinion on the Candidate

Judge Kavanaugh had been coasting through the nomination process, assured of his confirmation. Understandably, it was a shock when he learned of Ms. Ford’s allegations. In a subsequent Fox News interview, he responded as the choir boy he had projected in his initial hearing. He explained that in high school he concentrated on his studies and athletics and went to Church on Sundays. But the allegations took hold and criticisms mounted. When he sat down at the hearing, following Ms. Ford’s appearance, the choir boy had disappeared. In his place was an angry, emotional and belligerent individual in a fighting mood. He was there to defend his reputation and attack those who had besmirched his name with false allegations.

Judge Kavanaugh had every right to be angry and emotional. He deserved the opportunity to speak out against these awful accusations. But this was a job interview for a seat on the Supreme Court. It was not a political event to rally his supporters with partisan accusations in the manner of the President who nominated him.

The FBI Investigation

Though the Republicans did not want any further investigation, the three “renegade” Senators had forced the issue. The implied threat that without it, they would not vote affirmatively for the nomination forced the Committee to request it.

The President responded and ordered the FBI to make an investigation but complete it by October 5th. Though publicly stating the FBI would have free rein to go wherever necessary, based on emerging reports, it appears otherwise. The President’s comments Tuesday evening at a rally in Mississippi mocking Ms. Ford make clear he neither believes or even respects her. His promise of an open FBI investigation looks more and more like a facade to reach a predetermined outcome. Senator McConnell’s vow to plow through this nomination reinforces that conclusion, suggesting the “fix” is in.

Yesterday the Republicans initiated their “talking points” to convince the public that this was a thorough and fair investigation that could not produce corroboration of Ms. Ford’s (or Ms. Ramirez’) allegations. In support of this conclusion, they declared that the FBI had spoken to a substantial number of witnesses in the seven background checks made over Judge Kavanaugh’s career. Grouping all his background checks together is nothing more than an attempt to make it appear that this was an exhaustive investigation. But it obscures the fact that the FBI did not interview the several witnesses that came forward to corroborate the claims made by these women.

Now that we know this was not the promised open investigation, let’s look at what we have learned about Brett Kavanaugh and his suitability for the Supreme Court.

Impact of the Candidate’s Drinking

Despite his record as a jurist, I do not find Judge Kavanaugh to be a credible individual.

He either denied or obfuscated his excessive drinking. I’ve been out of high school some 61 years but can still recognize the importance of a student’s yearbook. It is not simply a braggadocio statement with no basis in fact. It is—perhaps—the most revealing summary of what you did in high school. And reading the “code,” one can recognize the real high school student, Brett Kavanaugh.

During his hearing he acknowledged that at times he drank too much beer, but was silent as to what that meant. When pressed, he implied that might be the legal limit blood alcohol concentration. The generally accepted blood alcohol level at which one is considered legally intoxicated is .08. If that meant too much beer for him, it also meant that he was legally intoxicated. A study by the University of Oklahoma Department of Medicine indicated that at a level .09 to .25 — 3 to 5 drinks within one hour for a man—a person begins to experience emotional instability, loss of coordination, judgment, perception, memory and balance, vision issues and drowsiness. It is therefore possible that because of his excessive drinking, Judge Kavanaugh cannot remember his actions with Ms. Ford.

Drinking and Lying

Other individuals who knew him at Yale have already spoken out about his drunken behavior and belligerence. I have no doubt that this was a frequent occurrence in his early years there, a continuance from high school. It is commendable that he later managed to get his drinking under control and create a notable judicial record. But that does not forgive any aggressive actions he may have taken against others, whether or not he remembers them.

If acknowledged youthful drunkenness were the only issue, one might be tempted to overlook it. Lying about it is another matter. That becomes particularly important when taken together with accusations that he was less than truthful previously on other issues. Just recently, evidence surfaced that he lied about his knowledge of an accusation by Deborah Ramirez. Senator Hatch asked him several times when he learned of the accusation of sexual misconduct by his former Yale classmate. He responded in each instance that he learned of it only after an article appeared in The New Yorker. Yet weeks before, the Judge and his friends exchanged text messages concerning the accusation.

The Candidate’s Lying, Temperament and Objectivity

The fact that he is a proven liar should keep him off the Supreme Court. But even that is not the most important reason he should be kept off the highest court in the land. To begin, let me cite a few statements from his initial testimony to the Judiciary Committee.

“My judicial philosophy is straightforward: A judge must be independent and must interpret the law, not make the law.”

“A good judge must be an umpire — a neutral and impartial arbiter who favors no litigant or policy.”

“The Supreme Court must never be viewed as a partisan institution.”

“If confirmed to the Supreme Court, I will keep an open mind in every case.”

Now compare those statements with those he made to the Judiciary Committee in the hearing described above. There he attacked the Democrats, the Clintons, and left-wing opposition groups. Ask yourself: how will this individual react should any of his self-determined attackers or their positions come before the Court? Can he be independent or a neutral and impartial arbiter? Can he keep an open mind? The obvious answer is no. And if confirmed, will his partisan attacks insure the Supreme Court will thereafter be viewed as a partisan institution? The obvious answer is yes.

If you have any doubts, refer to his angry, snarling, belligerent and disrespectful interactions with every Democratic Senator. Then his statement, “what goes around comes around.” He has well-defined his intentions.

The Candidate’s Nomination

Failing to meet even the most basic requirements of objective behavior, Judge Kavanaugh should not be confirmed for the Supreme Court. Rather, consideration should be given to removing him from the bench on which he currently serves.

But, of course, that will not happen. Republicans are hell bent on pushing through this nomination to secure conservative control of the Supreme Court for generations to come. They assert Judge Kavanaugh has not been treated fairly and blame the Democrats. Their remedy is to confirm his nomination. Nevertheless the only issue that is relevant is Judge Kavanaugh’s fitness for the job. And based on what we already know, he is not.

There are only three Republicans who have expressed some doubt about Judge Kavanaugh—Senators Flake, Collins and Murkowski. At times in the past they have demonstrated their independence from partisan decisions and followed their conscience. They are intelligent individuals and one expects they can see beyond the predetermined conclusion their colleagues created from this obviously restricted FBI investigation. The fact that so many witnesses came forth to corroborate accusations, but were not interviewed is proof of the inadequacy of this investigation. Were this investigation performed properly, I believe Brett Kavanaugh’s guilt of sexual assault would be clear.

So, it now seems to be up to Senators Flake, Collins and Murkowski. This is a time of conscience, when loyalty to country should prevail over loyalty to party. One can only hope they follow their conscience and vote “no” on Judge Kavanaugh’s nomination.